Month: November 2018

The Convening Authority’s Administration Building at Guantanamo. Photo from the Defense Systems Journal.

As I learned during my first visit to Guantanamo as an NGO representative of Indiana University School of Law’s observer program in January, the fact that there are hearings scheduled at the war court complex is no guarantee that they will go forward. At that time, hearings were cancelled and shortened due to concerns for the health of alleged al-Qaeda commander Abd al Iraqi/Nashwan al Tamir, who has now undergone five back surgeries in the past nine months. As we prepared to observe this week’s hearings against five alleged September 11 conspirators, we learned that there were again issues that threatened to derail the hearings scheduled through the week.

Mold issues at the war court

When the defense team for alleged 9/11 conspirator Walid bin Attash arrived at their offices in a prefabricated trailer-style building Saturday, they found it, their files, and their court clothes caked in mold. The legal teams’ trailers are a part of the “Expeditionary Legal Complex,” which, along with the “Camp Justice” tent city housing visiting NGOs and journalists, all atop an obsolete airfield. The hearings were again in question, until Sunday night, when we learned that they would indeed go ahead at 9 a.m. after an 8 a.m. conference between Judge Parella and the parties’ lawyers.

The first hour of the day was spent in discussion of the mold problems, and the delays to planned preparation they caused the defense teams. According to Bin Attash’s defense lawyer, William Montross, two members of the defense team had gone to the ER for “breathing difficulties” and a third’s arms were “all red” as a result of the exposure to the mold. His own suits were ruined, and he wore instead green chinos, a gray collared shirt, and a “Harry Potter” tie. Confidential documents had to be left behind rather than risking contaminating other areas.

Proposed alternate office contained a decaying rat and rat feces and nests. The other teams, who’s offices share a common ventilation system, were also affected. Montross argued that the hearings should be delayed to permit more preparation time to make up for time lost dealing with the mold, re-printing documents, and finding an alternate workspace. Judge Parella rescheduled oral argument on a bin Attash motion until later in the week, and otherwise decided that hearings would proceed as scheduled.

The gallery

I and observers representing eight other non-governmental organizations (NGOs) and our Guantanamo escort entered the court complex through a security tent and a walkway lined with chain-link fencing covered with black cloth sniper-netting and lined with razor-wire. There was additional security at the entrance to Courtroom II itself, and we then received our seat assignments in the gallery. The nine of us sat in the third and last of four rows on the left side of the gallery, and several journalists sat in the first row. Several uniformed servicemen sat to our left, as did a paralegal and one of the legal teams’ victim family member liaisons.

Eight victim’s family members (VFMs) entered the gallery last, sitting in three rows on the right side of the gallery, separated from us by a blue curtain. Before the hearings started, VFMs were escorted individually to the left side of the gallery to get a better view of the defendants. While most of the NGOs are lawyers or law students representing law schools and other legal organizations, one of our group represents September 11th Families for Peaceful Tomorrows, and herself lost her sister in the South Tower of the World Trade Center on that fateful day.

The gallery we were seated in has five large windows looking into the courtroom, each with a television monitor at the top. The monitors display the person speaking, whether the judge, defense or government counsel, and they and the audio work on a 40 second delay. We were informed that if classified information is mentioned, a police-type light to the left of the judge would turn on, the monitors and audio would stop, and white noise would begin. This has not occurred while I’ve been at the court. Cameras in each corner of the gallery kept watch upon observers, who were warned that decorum would be maintained as if we were seated in the courtroom. The proceedings were also broadcast by closed circuit television to sites at Fort Meade, Maryland and Fort Devens, Massachusetts.

Me in front of the tent housing three other NGO observers and I this week

The Courtroom

Inside the courtroom are six tables for each the defense and prosecution teams of up to six defendants. A chair on the left side of each defense table is equipped with “shackle points” – a chain about a foot long secured to the floor to which Defendants may be shackled. These shackle points have not been used in some time. The five defendants were escorted in by guards of the Joint Task Force – Guantanamo Bay (JTF-GTMO). Twelve to fourteen guards rotated in and out of the courtroom and along the left wall periodically throughout the hearings.

The defense side of the court was full. Four of the defense teams, both military and civilian lawyers, are seated to the right of their clients. Walid bin Attash has declared that he no longer wants his counsel to represent him, so they sit at the sixth table. Most of the female defense lawyers, in consideration of their client’s cultural sensitivity, wear traditional Muslim abayas covering their heads. Six three shelf carts full of documents binders are arrayed around and behind defense tables. Government trial counsel sit to the right of the aisle, and are either military, Department of Defense, or Department of Justice lawyers.

Much of the day was taken in arguments over defense motions to compel the government to produce additional evidence about CIA torture and its rendition, detention, and interrogation program. The first of these was Mustafa al Hawsawi’s motion to compel the government to produce records regarding communications the FBI had with, and records it obtained from, third parties during its investigation of the case.

Al Hawsawi lawyer, Marine Corps Lieutenant Colonel Sean Gleason, explained that during the testimony of FBI Special Agent Abagail Perkins last year, it was revealed to the defense for the first time that the banking and financial records’ declarations the prosecution had offered in its case against al Hawsawi were not collected by the FBI themselves, but were provided by foreign government intermediaries, sometimes years after the records themselves were collected. Therefore, the defense needs notes, letters, or e-mails containing requests or responses between the FBI and foreign governments in order to properly evaluate the foundation for the records. Lawyers for Walid bin Attash and Ammar al Baluchi joined in the motion, noting that the financial records were the government’s most important evidence regarding their client’s alleged support for the 9/11 hijackers.

Lawyers for Ammar al-Baluchi then argued two motions to compel the government to produce additional information about CIA torture, mainly conducted at “black sites” at locations around the world. Following his arrest in April 2003, al Baluchi was kept in CIA custody at undisclosed locations prior to his September 6, 2006 transfer to prison at Guantanamo. During al-Baluchi’s secret detention, he was tortured by the CIA using what have become known as “enhanced interrogation techniques.”

Al-Baluchi’s civilian lawyer, Alka Pradhan, made the argument that the index that the government had provided regarding the CIA’s rendition, detention and interrogation program (“RDI”) was full of errors, gave only code names instead of actual locations, and failed to identify individuals that were present during his interrogations and torture. Other defendants joined in the motion, and Walid bin Attash’s lawyer deferred argument until Friday’s closed session. The government argued that Judge Pohl had ruled the index they had provided was sufficient, and that witness identification was unnecessary.

Defense motions to compel information about torture and interrogations

Al-Baluchi’s learned counsel, James Connell, argued related motions that the government produce information for non-CIA requests for black site interrogations, documents regarding interrogation personnel, and a report regarding the CIA’s sleep deprivation policy. Death penalty defendants are entitled to counsel experienced in capital cases. Connell argued that it appeared that the FBI had fed questions to CIA interrogators, and that the court should therefore compel the government to provide information regarding FBI investigations in Iraq, Afghanistan, and Guantanamo.

The defense is also requesting profiles of individuals who worked at black sites and had direct and substantial contact with the defendants. Government lawyer Jeff Groharing argued that Judge Pohl had approved its index as satisfying the requirement for a synopsis of individuals with substantial contact with the defendants, and that the government was continuing to supplement its responses to the defendants’ requests.

Ammar al Baluchi was tortured at CIA black sites for 3 1/2 years prior to his transfer to Guantanamo

Court was adjourned for the day at 3:30 to permit defense teams at least some additional time to prepare for Tuesday’s testimony of William Castle. Castle was the acting general counsel at the Department of Defense in February, when Defense Secretary James Mattis fired the Military Commissions Convening Authority Harvey Rishikof and its legal adviser Gary Brown.

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I was approved and have traveled to the U.S. Naval Station at Guantanamo Bay, Cuba for U.S. Military Commission hearings against five alleged September 11 conspirators.

My mission

I graduated with a J.D. from Indiana University McKinney School of Law in 1994, and am an employment lawyer in Indianapolis. When I was in law school, there were few international law opportunities for students.

Several years after I graduated, the school founded its Program in International Human Rights Law (PIHRL), which for over 20 years has offered students and graduates many international opportunities. One of its projects is the Military Commission Observation Project (MCOP), which sends faculty, staff, students, graduates to Guantanamo, after the program received special status from the Pentagon. I am thankful and excited about this opportunity!

My invitation to travel to Guantanamo and invaluable resources from the observer project

My mission through the IU McKinney project is to attend, observe, be observed, analyze, critique, and report on the hearings against the 5 alleged 9/11 co-conspirators.

The Defendants

Khalid Shaik Mohammad is the lead defendant, and is accused of masterminding the 9/11 attack on the World Trade Center and Pentagon, and overseeing the operation and training of the hijackers in Afghanistan and Pakistan. Walid bin Attash allegedly ran an Al-Qaeda training camp in Afghanistan where two of the 19 September 11 hijackers were trained. Ramzi bin al Shibah allegedly helped the German cell of hijackers find flight schools and enter the United States, and helped finance the plot. Ammar al Baluchi, Khalid Shaik Mohammad’s nephew, allegedly sent money to the hijackers for expenses and flight training, and helped some of them travel to the U.S. Mustafa al Hawsawi allegedly also helped facilitate fund transfers. All 9/11 defendants were arrested in the early 2000s, were held in CIA blacksites, and transferred to Guantanamo in 2006.

Khalid Shaik Mohammad (“KSM”)

My previous Guantanamo trip.

This is my second trip to “Gitmo” (the nickname for the naval station). In January 2018, I attended hearings in the case of alleged al -Qaeda commander Abd al Iraqi/Nashwan al Tamir. Al Iraqi / al Tamir has had five back surgeries in the past nine months, and that contributed to his having only two half-day hearings days the week I was here. Incidentally, hearings in Al-Iraqi’s case were again cut short this last week when he suffered spasms in the Courtroom and was rushed to a medical facility.

Last week, the sole high security courtroom at Guantanamo was double-booked, with hearings scheduled concurrently for the 9/11 defendants and for al Iraqi/al Tamir. Only one set of hearings can be held here at a time. Last week, the military judge in the 9/11 case, Marine Col. Keith A. Parella, held closed hearings in the Washington D.C. area, the first time a Guantanamo military commission criminal hearing in a death penalty case has been held in the continental U.S. Parella has presided since August 27 and replaced Army Col. James Pohl, who had presided continuously since 2011.

Preparing for My Trip to Guantanamo.

On Saturday, 10 November 2018, I traveled on a military flight from Andrews Air Force Base in Washington, D.C. to Guantanamo Bay. Motion hearings in the 9/11 case are scheduled to take place all week. There will be eight other representatives of non-governmental organizations (NGOs) observing the hearings with me.

My preparation for the mission to Guantanamo has included reviewing several publications of the Program in International Human Rights Law. These include the Guantanamo Bay Fair Trial Manual: Excerpts, which has introduced me to the relevant international and U.S. law. I believe this publication will be very helpful as I seek to analyze, critique and report on my Guantanamo experiences.

One of the NGO representatives, from the National Institute for Military Justice, provided the other NGOs documents relevant to the issues that are expected to be addressed. These are about 50 pleadings in the case, and a docket showing 17 motions which the court needs to address. More recent filings remain confidential, an issue which Al-Baluchi’s team hopes will also be addressed. This will certainly make for a full and interesting week.

We attended a barbeque hosted by al Baluchi’s defense team on Saturday night. The al Baluchi team sent a summary of five main issues that they expected would be addressed, and confirmed that Judge Parella intended to address those issues in a conference held earlier on Saturday.

The first is issue political influence with the military justice process, including the coordinated firing of senior military commission officials and the current CIA Director’s comments regarding the guilt of the accused.

The other issues are: defense access to additional information about CIA torture, defense access to other evidence, conditions of confinement issues, and the transparency of the military commissions. In January, our group of NGOs attended a similar barbecue hosted by Al-Iraqi’s defense team later in the week. Our meeting with al Baluchi’s defense teams this early in the week has helped us all understand the issues that will be addressed this week much better.

Hearings in a Guantanamo Bay, Cuba U.S. military commission war crimes case are scheduled for 5 to 9 November 2018. I was nominated to travel to Ft. Meade, Maryland, where the hearings will be broadcast live via CCTV, direct from the Guantanamo courtroom, in a criminal case against an alleged high level member of al Qaeda Iraq.

I am a librarian at Indiana University Robert McKinney School of Law with a long interest in international law and human rights. When I arrived at the law school in January 2017, I was intrigued by its Military Commission Observation Project, which is part of our law school’s Program in International Human Rights Law.
In January 2018, Professor George Edwards circulated a note to faculty, staff, students and graduates announcing that we were all eligible to travel to monitor military commission war crimes hearings at Guantanamo Bay, Cuba (for live monitoring in the courtroom) and to Ft. Meade (for CCTV monitoring). In February 2018, I submitted my application and supporting documents to the Pentagon for travel to both Guantanamo and Ft. Meade, as a non-governmental organization (NGO) observer. The Pentagon cleared me for travel to Guantanamo and to Ft. Meade. Due to various circumstances, I have opted to travel to Ft. Meade for my first observation mission.

Upcoming hearings

The military commission hearings I plan to monitor are against a man from Iraq whom the prosecution calls Abd al Hadi al Iraqi, but who calls himself Nashwan al Tamir. The U.S. accuses him of being a senior member of al-Qaeda Iraq, liaison with the Taliban, and perpetrator of war crimes. The charges include denying quarter, attacking protected property, using treachery or perfidy, and attempted use of treachery or perfidy in a series of attacks in Afghanistan and Pakistan between about 2003 and 2004, and conspiracy to commit law of war offenses. He faces a full range of sentencing possibilities if convicted – a term of years, or life in prison. The death penalty is not on the table.

As I was preparing for monitoring, I wanted to review motion papers and other official documents for the case. I looked up the case at mc.mil. However, much of the very recent court documents are hidden behind a blocked screen that indicates that those documents are undergoing a security review and are not accessible to the public at this time.

Preparing to Monitor

My trip will begin in about a week. To prepare for the case, I have been reading the following sources: The Know before You Go to Guantanamo Bay Manual and The Guantanamo Bay Fair Trial Manual, principally authored by Professor George Edwards, with the assistance of McKinney stakeholders and contributions from many others. These manuals provide significant and necessary information for anyone monitoring these cases.

My mission

As an observer / monitor, my mission is to attend, observe, be observed, analyze, critique and report on the military commission hearing at Guantanamo. I am looking forward to this opportunity.

As part of my mission, I plan to submit another blog post before I depart, and send in posts while there.

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Endorsements

“While [at Guantanamo Bay] I was given a copy of the Guantanamo Bay Fair Trial Manual for U.S. Military Commissions. I read it cover to cover. This is simply required reading for anyone who goes [to Guantanamo Bay] to observe. Thank you for the enormous effort it must have taken to produce it.
[NGO Observer, 2014]

After reading the Guantanamo Bay Fair Trial Manual, "I feel a high calling to meet the obligations you note for an observer to report what they have observed.”
[NGO Observer, 2014]